Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Reporter Chris Otts, WDRB News (WDRB), initiated this appeal challenging the denial by the University of Louisville Foundation (Foundation) of his April 1, 2015 request for "a digital copy (.pptx or whatever file format the presentation was in) of the PowerPoint presentation presented by Dr. Ramsey to the Foundation Board of Directors at the directors [sic] meeting on March 31, 2015." (Original emphasis.) In a timely written response, Kenyatta Martin denied Mr. Otts' request on behalf of the Foundation, quoting the language of KRS 61.878(1)(i) and (j). The Foundation advised Mr. Otts that the PowerPoint presentation requested "is a preliminary draft and therefore will not be made available to you. See 00-ORD-195." On appeal Mr. Otts advised that WDRB disagrees with the position of the Foundation as the presentation "was in fact shown to the [F]oundation's directors during an open session of the [F]oundation's board meeting on March 31, 2015."
Upon receiving notification of Mr. Otts' appeal from this office, legal counsel for the Foundation elaborated upon his client's position as follows:
Public records that are preliminary in nature forfeit their exempt status only upon being adopted by the agency as a basis for its final action. See 08-ORD-098.
The Attorney General has previously affirmed a public agency's decision to withhold a draft report relating to its compensation classification system on the basis of KRS 61.878(1)(i) and rejected the argument that because the draft report had been discussed at one or more public forums it forfeited its preliminary status. 00-ORD-195. Thus, the fact that the power point presentation was shown at a meeting of the Foundation's board of directors does not cause the presentation to forfeit its preliminary status. The power point presentation contains information regarding preliminary plans for potential real estate development. The Foundation has not yet taken final action with respect to these developments, and the Foundation continues to formulate plans and analyze and discuss the potential benefits of such developments. Accordingly, the power point presentation is still in preliminary draft form and subject to further revisions and edits, and is thus exempt from the Act's general disclosure obligation.
Counsel further noted that, while the PowerPoint presentation was shown during a public, open meeting of the Board, copies of the slides were not distributed. "Distributing copies of these preliminary slides, " counsel reasoned, "would inevitably lead persons to the conclusion that the Foundation has taken final action with respect to these matters, which would have the effect of misleading the public."
In resolving the question presented, this office is guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," and the corollary judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. " Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). "Despite its manifest intention to enact a disclosure statute," however, "the General Assembly determined that certain public records should be excluded from disclosure. Among such records are [those identified at KRS 61.878(1)(i) and (j)]." 1 Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994). See Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995).
Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j), commonly known as the "preliminary exceptions," in a variety of contexts. See City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658-660 (Ky. App. 1982); Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983); University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) ("investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). See 99-ORD-220; 02-ORD-86; 07-ORD-156. Guided by this evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status only upon being adopted by the agency as a basis for its final action. See OAGs 83-405, 84-98, 88-2, and 89-69; 99-ORD-220; 00-ORD-139; 07-ORD-156. Regarding the underlying rationale of these statutory exceptions, the Attorney General has recognized that "KRS 61.878(1)[(i) and (j)] have been interpreted to authorize the nondisclosure of both interagency and intra-agency drafts and memoranda, and are designed to encourage frank discussion of matters of concern to the public agency or agencies." 93-ORD-125, p. 4. As evidenced by a review of the relevant authorities, that rationale is deemed "equally compelling regardless of whether the communications are within an agency or between agencies." Id. In dissecting the language of KRS 61.878(1)(i) specifically, this office has consistently recognized that a "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage College Dictionary 495 (4th ed. 2002). 97-ORD-183, p. 4; 09-ORD-041.
In 00-ORD-139, and shortly thereafter in 00-ORD-195, upon which the Foundation relied, this office reaffirmed its longstanding position regarding the question of premature access to preliminary documents that fall within the parameters of KRS 61.878(1)(i) and (j). See 00-ORD-139, pp. 4-9; 00-ORD-195, pp. 4-8. In 00-ORD-139, the document in dispute consisted of a report, submitted to Sanitation District No. 1 by an outside consultant, which contained "preliminary recommendations and preliminary memoranda in which opinions are expressed and policies formulated and recommended concerning proposed rate increases the Board of Directors of Sanitation District No. 1 may wish to implement," and which retained its preliminary characterization pursuant to KRS 61.878(1)(j) "until that report was evaluated, discussed, and approved by the District." 00-ORD-139, p. 1, 12. In 00-ORD-195, the document in dispute consisted of salary and job evaluation data compiled for Eastern Kentucky University (EKU) by an outside consultant and submitted for internal review and comment. On appeal the record established that "the collection of data [was] still in progress and undergoing revision, and that [the consultant] ha[d] not yet reached the stage at which recommendations [would] be made, opinions expressed, and policies formulated and recommended. " 00-ORD-195, p. 7. Accordingly, this office characterized the document as "'a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38'" that were excluded from inspection by KRS 61.878(1)(i). 00-ORD-195, p. 8 quoting 97-ORD-183.
Noting that EKU had expressly denied taking any final action based on the draft report, in which "errors were found and omissions noted that have necessitated revision, " this office concluded, "The fact that the materials submitted to date may have been referred to in one or more public forums . . . does not alter our conclusion inasmuch as this act, standing alone, does not signify formal adoption of a draft report. " 00-ORD-195, p. 9; 00-ORD-197 (affirming Louisville Free Public Library's denial of a request for a draft report prepared by an outside consultant) ; 05-ORD-048 (affirming Kentucky High School Athletic Association's denial of a request for a non-final report); 08-ORD-235; compare 10-ORD-032 (recognizing that "the purposes supporting [KRS 61.878(1)(i)] are not served when the . . . tentative version[] proposed [is] discussed at an open, public meeting" as the record on appeal reflected that draft in dispute "represent[ed] a group consensus"). Under this line of authority, the Foundation was entitled to withhold the PowerPoint presentation requested notwithstanding the fact that its content was openly discussed at its March 31, 2015 public meeting as the document is "subject to further revisions and edits" and the Foundation has not taken any final action regarding the real estate development (s). See 05-ORD-050; 06-ORD-254; 11-ORD-205.
Either party may appeal this decision by initiating action in the appropriate circuit court under KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Among the public records that may be excluded from public inspection in the absence of a court order authorizing inspection are those identified at KRS 61.878(1)(i) and (j), respectively, as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.